Himachal Pradesh High Court
Satpal Singh Satti & Others. ...Non vs State Of H.P. & Others. ... on 10 October, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No. 11399 of 2023 in CWP No. 2507 of 2023 Date of decision: 10.10.2023 Satpal Singh Satti & others. ...Non-applicants/Petitioners.
Versus State of H.P. & others. ...Applicants/Respondents No.1 and 3.
Coram Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting? Yes.
For the Non-applicants/ : Mr. Satya Pal Jain and Mr.Ankush Dass Petitioners Sood, Senior Advocates, alongwith Mr. Virbahadur Verma, Mr.Ankit Dhiman, Advocates.
For the applicants/ : Mr. Anup Rattan, Advocate General,
respondents-State with Mr. Navlesh Verma and Mr.
Rajesh Mandhotra, Additional
Advocates General.
For the non-applicants/ : Mr. Shrawan Dogra, Senior Advocate,
respondents with Mr. Tejasvi Dogra, Advocate.
Mr. Deven Khanna, Advocate
Mr. Ajay Sharma, Senior Advocate,
with Mr. Atharv Sharma, Advocate.
Mr. Virender Singh Chauhan, Senior
Advocate, with Mr. Vikram Thakur, Mr.
Vanshaj Azad and Mr. Arsh Chauhan,
Advocates.
Mr. P.P. Chauhan and Ms Shikha Rajta,
Advocates.
Mr. Neeraj Gupta, Senior Advocate,
with Mr. Ajeet Pal Singh Jaswal, Mr.
Vedhant Ranta and Mr. Pranjal Munjal,
Advocates.
CMP No. 11399 of 2023
in CWP No.2507 of 2023
...2...
Vivek Singh Thakur, Judge
Main petition CWP No. 2507 of 2023 has been filed by 12 petitioners, who are Members of Legislative Assembly, Himachal Pradesh, with prayer to issue Writ of Mandamus or any other appropriate Writ or order or direction to quash Section 3
(d) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 as well as Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006 alongwith all subsequent actions undertaken, including the appointment of respondents No. 5 to 10 as Chief Parliament Secretaries, being illegal, irrational and unconstitutional and also for issue of Writ of Mandamus or any other appropriate writ or direction to set aside notification dated 11.1.2023 qua designation of respondent No.4 as Deputy Chief Minister and to restrain respondent No. 4 from participating in any Cabinet Meeting and to recover the money spent towards consequential benefits including the salary given to respondent No. 4 to the extent of benefits given above than the designation to the Minister of State.
2. Respondent No. 1 is State of Himachal Pradesh sued through Chief Secretary to the Government of H.P., respondent No. 2 is the Secretary to the Governor of Himachal Pradesh and respondent No. 3 is the Principal Secretary (Finance) to the CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...3...
Government of Himachal Pradesh. All of them are being represented by learned Advocate General, whereas respondent No. 4 is Deputy Chief Minister of Himachal Pradesh and respondents No. 5 to 10 are Chief Parliamentary Secretaries to the Government of Himachal Pradesh, appointed as such vide Notification dated 8.1.2023 by Hon'ble Chief Minister of Himachal Pradesh by exercising powers conferred under Section 3 of the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006.
3. Reply on behalf of respondent No.4 stands filed. Short reply dated 15.6.2023 has been filed on behalf of respondent No. 2-Secretary to Governor of Himachal Pradesh, whereas no reply has been filed on behalf of respondents-State. Respondents No. 5 to 10 have also not filed reply to the petition, despite the fact that respondents No. 6 and 9 were served in May, 2023 in present petition, respondent No.7 was served for 31.08.2023 whereas other respondents No.5, 8 and 10 had refused to receive the summons and were deemed to have been served on 31.8.2023.
4. Petition, admittedly, has been signed by petitioner No. 1 only. Apart from him, counsel representing petitioners CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...4...
have signed it. Affidavit in support of writ petition has been filed by petitioner No. 1 only.
5. Though respondent No. 1-State and respondent No. 3-Principal Secretary Finance have not filed any reply till date, but this application (CMP No.11399 of 2023) has been filed on their behalf invoking provisions of Rule 13 contained in Part C of Part-II of the High Court of Himachal Pradesh (Original Side) Rules, 1997, read with its Rule 1 thereof and Order 1 Rule 12 of the CPC with a prayer to dismiss the petition being without authority and competency and thus not maintainable.
6. No reply has been filed to the application, however, subsequent to filing of application, an application CMP No. 12080 of 2023 has been filed on behalf of petitioners under Section 151 of the Code of Civil Procedure for placing on record supplementary affidavits of Petitioners No. 2 to 12 alongwith such supplementary affidavits sworn by these petitioners in support of petition filed on the affidavit of petitioner No. 1. The said application has been allowed, and supplementary affidavits have been taken on record for consideration subject to all just exceptions.
7. No reply has been filed to the present application by the petitioners, however, an objection has been raised on behalf of petitioners that application itself is not maintainable being CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...5...
filed on affidavit of Joint Secretary (GAD) to the Government of Himachal Pradesh but without producing any authorization to file the same by the respondents-applicants. It has been contended that application has been filed by Joint Director (GAD), who is not a party and, therefore, this application is not maintainable.
8. In response to the aforesaid objection of the petitioners, learned Advocate General has placed reliance on Rule of Business of Government of Himachal Pradesh and Notification dated 25.1.1971, issued by Law Department of the Government of Himachal Pradesh bearing No. LR-107-420/54, whereby Joint Secretary is amongst the Officers who have been authorized by the Governor of Himachal Pradesh to act for the State of Himachal Pradesh to sign and verify the plaints and written statements by or against the State of Himachal Pradesh and do act for State of Himachal Pradesh in respect of any judicial proceedings.
9. Considering the material placed before us, we are convinced that the application filed on the affidavit of Joint Secretary cannot be declared not maintainable on the ground that it has been filed on the affidavit of Joint Secretary to the Government of Himachal Pradesh.
10. Learned Advocate General has submitted that petitioner No. 1 himself remained Chief Parliamentary CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...6...
Secretary during 2009 to 2012 and, therefore, he has no right and locus to file present petition challenging the appointments of Chief Parliamentary Secretaries, being beneficiary under the same Act, as appointee as Chief Parliamentary Secretary.
11. It has been contended that petition has been signed only by petitioner No. 1 and no authorization of other petitioners to file the same has been placed on record and affidavit in support of petition has been filed only by petitioner No. 1 and till date no reply has been filed to the present application on behalf of petitioners, despite notice of the application on 31.8.2023 with grant of time to file reply and according to learned Advocate General in view of provision of Code of Civil Procedure and High Court of Himachal Pradesh (Original Side) and (Writ Jurisdiction) Rules, 1997, it is an illegality committed by the petitioners and, therefore, petition deserves to be dismissed being not maintainable.
12. Referring Order 1 Rule 12 of the Code of Civil Procedure, it has been contended that filing of a joint petition by several petitioners, under signature and affidavit of one of them, the person signing and filing affidavit should be authorized by others in writing signed by other petitioners giving such authorization and the said authorization is required to be filed in the Court and as petitioners have failed to comply the said CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...7...
provision, therefore, it has been contended that petition deserves to be dismissed being not maintainable.
13. Referring definition of "Code" provided in Chapters I & III of Part-I of High Court of Himachal Pradesh (Original Side) Rules, 1997, it has been contended that Original Side Rules make the Code of Civil Procedure applicable for proceedings in the High Court. Referring Rule 2 of Chapter III Dealing with form of pleadings, it has been contended that every pleading shall be signed and verified by the party concerned in the manner provided by the Code.
14. Referring Rule 1 of Part-C of Part-II of High Court of Himachal Pradesh(Original Side) Rules, 1997, it has been contended that petition must have to be accompanied by affidavits of all petitioners verifying the facts stated therein in the manner and in the form prescribed in the Rules and Schedules attached to these Rules. It has been contended that in these Rules word "affidavit or affidavits" are there, which indicates that affidavits of each and every petitioner is required to be filed alongwith the petition verifying the facts stated therein. It has been contended that present petition has been filed on personal affidavit of petitioner No. 1 with no authorization in writing signed by other petitioners alleged to have been given to him and the bald statement that he has been CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...8...
instructed by petitioners No. 2 to 12 to file affidavit, is not enough for maintaining the Writ Petition on behalf of petitioners and there is no other authorization or other undertaking on record or filed in the Court to substantiate the claim of petitioner No. 1 regarding authorization by other petitioners to file the petition.
15. According to learned Advocate General petition has not been supported by affidavits of all petitioners except petitioner No. 1, whose affidavits were required to be filed, in absence of authorization in writing in favour of petitioner No. 1 and, therefore, for filing a petition without complying the relevant provisions of Rules, the petition deserves to be dismissed being not maintainable.
16. It has been contended that word "shall" in the Rules framed by the High Court and in the Civil Procedure Code, clearly depicts the mandate of law that these provisions are mandatory to be complied where number of petitioners are enjoined and prefer Writ Petition/case, and the personal affidavit claiming such authorization will not be suffice to meet the requirement/mandate of law, particularly when even petition has not been signed by other co-petitioners.
17. Learned Advocate General has placed reliance, to substantiate his arguments, on a judgment dated 13.11.1953, CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...9...
titled as Ratanlal Vs. Gaurilal, claiming to have been passed by High Court of Rajasthan, stated to be reported in 1954 Rajasthan Law Weekly 748 (DB), wherein co-plaintiffs who were father and son and father was maintaining joint Hindu Family, it was observed that each one of them has an authority to act for himself only and unless authority is given by one, other one cannot act in the suit for the other and in absence of compliance of Order 1 Rule 12 CPC, compromise of suit himself without consent of other co-plaintiff was held not to be permissible.
18. Judgment in Rattanlal's case, passed by Rajasthan High Court, is not applicable in present case for different nature of proceedings and given facts and circumstances of the said case in comparison of present matter.
19. Learned Advocate General has also placed reliance on S.Nesamony Nadar Vs. Nidalam Government High School, AIR 1978 Madras 383, wherein it has been held that in absence of authorization of all members of the committee, President was not entitled to maintain the suit and in absence of Power of Attorney given by all the members of the committee empowering him to institute a suit, suit was not maintainable.
20. In judgment of Madras High Court in S. Nesamony Nadar's case, suit was filed for recovery of amount which belonged to all members of the committee of an unregistered CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...10...
society and the plaintiff was not a society duly registered under the Societies Registration Act and, therefore, it was not a corporate body and the suit was filed on behalf of committee, but through President without any authorization of the members of the committee. Therefore, in given facts and circumstances, judgment referred by learned Advocate General, is not relevant to the present case.
21. Learned Advocate General in response to supplementary affidavits filed by co-petitioners No. 2 to 12 placed on record, has contended that authorization must be in writing in Writ Petition itself, but not in the shape of supplementary affidavits, and in absence of any amendment in the petition or filing petition signed by all petitioners, defect is still existing which, according to him, is a perversity because the defect has not been removed in the manner as prescribed under law in the Code of Civil Procedure as well as High Court Rules. He has further contended that filing of supplementary affidavits by co-petitioners, but without filing reply to the application and without responding to the issue raised in the application, it is apparent that the petitioners have nothing to say about the plea taken in this application and, therefore, petition deserves to be dismissed being not maintainable.
CMP No. 11399 of 2023in CWP No.2507 of 2023
...11...
22. Learned Advocate General has also referred orders passed by the Supreme Court in Special Leave to Appeal (C) No. 10879 of 2018 titled as Rakesh Choubey Vs. The State of Chhattisgarh, with submission that similar petition has been dismissed by the High Court of Chhattisgarh and in the SLP preferred against the same, no interim protection has been granted by the Supreme Court and the matter has been ordered to be listed on 10.11.2023 and, therefore, present matter also deserves to be listed thereafter.
23. Learned arguing counsel for the petitioners submits that notice in the main petition was served upon respondent- State on 4th May, 2023, but till date despite expiry of 30 days and thereafter 90 days, no reply has been filed to the petition and, therefore, for application of the provisions of CPC, respondents-State has lost its right to file written statement/reply to the main petition and, therefore, their right to file reply deserves to be closed, as time to file written statement provided under Order 8 Rule 1 CPC is only 30 days, which is extendable for further 90 days. Failing in filing response during this period respondents shall forfeit the right to file reply and Court shall not allow the reply of respondents to be taken on record after 120 days. It has been contended that in these provisions also word "shall" has been used and, therefore, reply CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...12...
was to be filed mandatorily within, at the maximum, 120 days and filing of present application cannot be a valid ground for not filing reply within the period prescribed under the Code.
24. It has been further submitted that there are no disputed facts and a legal issue has to be decided by the Court in the given admitted facts and circumstances and, therefore, requirement of affidavit of each and every petitioner is not necessary, as it is not a case of suit for partition or recovery, where each party has to assert its individual right by filing separate affidavits.
25. It has been contended that petitioner No.1 was Chief Parliamentary Secretary during 2009 to 2012 and at that time Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006 was neither assailed nor held to be ultra vires the Constitution by any competent Court of law, whereas in present scenario the Supreme Court vide judgment passed in Bimolangshu Roy Vs. State of Assam & Another, (2018) 14 SCC 408, has declared such Act to be illegal for lack of competency in the Legislature to enact such an Act and, therefore, holding of post of Chief Parliamentary Secretary by petitioner No. 1 at a time prior to verdict of the Supreme Court and in absence of any challenge to his appointment and for want of declaration of Act as ultra vires CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...13...
in Himachal Pradesh, it cannot be said, particularly in view of verdict of Apex Court, that petitioner No.1 has no locus or right to file present petition assailing the appointment of Chief Parliamentary Secretaries in Himachal Pradesh and for quashing of relevant Act and Rules allowing the Chief Minister to make such appointments.
26. Sections 129 and 130 of the Code of Civil Procedure empower the High Court to make rules as to their original civil procedure and to matters other than procedure, and such rules shall regulate its own procedure of the High Court in exercise of original civil jurisdiction and nothing in the Code shall affect the validity of such rules in force.
27. Learned Advocate General has not contended that the defect pointed out by him is a defect in the Writ Petition which goes to the root of the cause, rendering petition not maintainable, as provided under Order 23 Rule 1 CPC. Even otherwise, in the given facts and circumstances, considering the nature of pleadings, relief sought in the petition, we are of the considered opinion that defect, if any, as alleged by respondents-State, is a defect of formal nature prescribed by Rules of Procedure and, hence, the alleged formal defect is not affecting the substance of the petition.
CMP No. 11399 of 2023in CWP No.2507 of 2023
...14...
28. It has been contended on behalf of petitioners that it is a Writ of Quo Warranto against usurption of office by respondents No. 4 to 10 on account of their unconstitutional appointment, with submission that even if the Act is held to be valid, the appointment of respondents No. 5 to 10 are invalid, because neither posts were advertised nor applications from the Members of Legislative Assembly were invited nor any criteria was fixed for choosing the Members to be appointed as Chief Parliamentary Secretaries and respondents No. 5 to 10 have been appointed as Chief Parliamentary Secretaries by picking and choosing on whims and fancies of the concerned authority.
29. Plea taken on behalf of the petitioners that as at the time of holding the post of Chief Parliamentary Secretary by petitioner No.1 during 2009-2012, it was not law of the land that Legislature has no competence to enact a law providing appointment of Chief Parliamentary Secretary and, thus, there is no legal impediment for petitioner No.1 to prefer present petition, appears to be plausible.
30. Plea of the learned Advocate General for adjourning adjudication of the present matter, for pendency of SLP in the Supreme Court in Rakesh Choubey's case, arising out of a judgment of Chattisgarh High Court, in a similar matter is neither plausible nor relevant for adjudication of present petition. CMP No. 11399 of 2023 in CWP No.2507 of 2023
...15...
31. Judgments referred by learned Advocate General, S. Nesamony Nadar and Ratanlal's cases, in our view, are not relevant in present case.
32. Present petition has been signed by petitioner No.1 and Advocates representing the petitioners, and all of 12 petitioners have signed Power of Attorney, authorizing their Advocates to act on their behalf and they have signed the petition on behalf of petitioners, which is duly supported by affidavits of petitioner No. 1. An Advocate is competent and authorized to sign, file, verify and present pleadings on behalf of party which has engaged him as an Advocate.
33. Order 1 Rule 12 CPC provides that there shall be in writing authority signed by the party giving it and it shall be filed in the Court. Petitioner No.1 in his affidavit, has stated that he has been engaged by petitioners No.2 to 12 to file and swear affidavit on their behalf. By filing supplementary affidavits, petitioners No.2 to 12 have deposed on oath that Writ Petition No. 2507 of 2023 has been drafted and prepared at their instance and under their instructions and petitioner No.1 was authorized by them to file and maintain the same on his own behalf as well as on their behalf and further that writ petition and applications filed time to time in the matter are in their personal knowledge and belief and the petition and applications CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...16...
be deemed to be filed on their behalf. It has been declared that prior to filing of the petition they had given consent to petitioner No.1 to sign and maintain the petition as well as applications on his and their behalf.
34. In aforesaid supplementary affidavits it has been also stated that CMP No.11399 of 2023 (present application) preferred by respondents No.1 to 3 is not maintainable being mischievous, unwarranted and without any legal substance.
35. In Rule 1 of Part-C in Part-II of H.P. High Court Original Side Writ Jurisdiction Rules, 1997, it has been provided that petition shall be accompanied by an affidavit or affidavits verifying the facts stated therein. It is not mandate of the said Rule that in case of large number of petitioners, affidavit of each and every petitioner is required to be filed as contended by learned Advocate General. Provisions of Code of Civil Procedure, which are not in conflict with High Court Rules, are also applicable in the proceedings in the High Court. Order 6 Rule 15 CPC provides verification of pleadings, wherein it has been provided that save as otherwise provided by anylaw for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. Therefore, Rule 1 of Part-C in Part-II of H.P. CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...17...
High Court Original Side Rules, 1997, read with Order 6 Rule 15 CPC, does not mandate signing and verification of petition and filing affidavit by all petitioners where there are more than one petitioner. Therefore, plea of non-maintainability of the application on the basis of defective verification or for not filing separate affidavits by each and every petitioners, is not sustainable.
36. It is not a case where one petitioner has filed the petition by claiming authorization on behalf of other petitioners and other petitioners or either of them has come forward with the plea that petition has not been filed under his instructions or authorization. Rather it is a case where other petitioners have come forward, substantiating the claim of petitioner No.1 that the petition was filed under instructions of all of them by authorizing petitioner No.1 to sign and verify the pleadings and swear affidavit in support thereof.
37. It is settled that procedure is a handmade tool for regulating and governing the proceedings to impart justice which procedure cannot be allowed to overcome to the cause of justice, particularly when defect is trivial in nature and does not go to the root of case because substantive justice cannot be thwarted by taking hypertechnic view, particularly in a Writ Petition. The Supreme Court has held that mere filing of suit, CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...18...
without proper authorization, would not be fatal to the suit. The Supreme Court permitted filing of the authorization at the stage of Supreme Court itself. In this regard, Para-9 of pronouncement of the Supreme Court in United Bank of India Vs. Naresh Kumar and others, (1996) 6 SCC 660, is relevant, wherein it has been observed as under:-
"9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."
38. In view of above, we are of the considered opinion that there was no defect and in case there was defect, as alleged, it was a curable defect, which stands cured by filing supplementary affidavits by petitioners No.2 to 12, ratifying and substantiating the claim of petitioner No. 1 that he was instructed and duly authorized by petitioners No.2 to 12 to file and maintain the Writ Petition and application(s) therein on his behalf as well as on behalf of petitioners No.2 to 12 and there is no requirement for amendment of the petition or any pleadings therein, as in the petition no personal relief has been sought by petitioners, as individual, in their favour, rather an issue of CMP No. 11399 of 2023 in CWP No.2507 of 2023 ...19...
public interest, involving the constitutionality of an Act has been raised by filing joint petition and, therefore, present application being devoid of any merits is dismissed.
Hence, the application is dismissed.
(Vivek Singh Thakur), Judge.
(Bipin Chander Negi), Judge.
October 10, 2023
(sd/Keshav)
Digitally signed by SUBHASH CHAND
DHIMAN
DN: C=IN, O=HIGH COURT OF
SUBHASH HIMACHAL PRADESH, OU=HIGH COURT
OF HIMACHAL PRADESH SHIMLA,
Phone=3418061207364d8c002725dfc58ff1 16f678c3d39289db29b992cce875905119, CHAND PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=5ce240fac0e1267843f29 509683d09a9912af10edc4e6cd2ed5d4a8c DHIMAN 30134c1b, CN=SUBHASH CHAND DHIMAN Reason: I am the author of this document Location:
Date: 2023-10-10 14:41:42